Court: FCC Ban on Fleeting Curse Words Unconstitutional

Broadcasters should not be penalized for curse words that inadvertently go on air, an appellate court has ruled. The 2nd US Circuit Court of Appeals, in shooting down a controversial FCC indecency policy, said that imposing a fine on broadcasters who fail to catch profanities that slip through during broadcasts is unconstitutional and may violate the First Amendment.

The court said that the FCC’s failure to clearly define what it meant with “patently offensive” references to sexual organs, sex, and excrement could “chill speech.” The court added that broadcasters will have a hard time following the policy as they will have “no way of knowing what the FCC will find offensive.”

The case, brought by Fox Television against the FCC, stemmed from U2 frontman Bono’s comments when accepting the band’s award during the 2003 Golden Globe Awards. Bono was heard saying “this is really, really fucking brilliant” to describe the win for his band. The incident made the FCC rule that any use of the F-word has a sexual connotation. Hence, the FCC passed a policy stating that any single, literal use of an expletive, no matter how fleeting, can be considered “actionably indecent.”

The FCC had scored a victory last year when the Supreme Court held that the government agency has the right to regulate the use of profanity on the air waves. However, it sent the case back to the Court of Appeals to rule on whether the FCC policy would clash with people’s right to free speech under the First Amendment.

The appeals court said the FCC should instead craft a new policy that does not violate the First Amendment.